Supreme Court OKs `judicial carpetbagging¿

CAPITOL NOTEBOOK

July 30, 2011|BY BOB MERCER | American News Correspondent

PIERRE — Decisions often come down to the places the deciders are from.

In South Dakota, that’s why we have representative ward-type systems in some city and county governments. For the same reason, we have 35 geographic districts for the Legislature. And it’s why we have five geographic districts for our state Supreme Court justices.

Or so we thought.

The principle of residency within a specific district for the Supreme Court’s five justices was turned on its side just a few days ago, by the court itself, in a 3-2 decision.

The majority expressed its position in an advisory opinion issued to Gov. Dennis Daugaard and written by Chief Justice David Gilbertson. The chief justice was supported by two of the associate justices, Glen Severson and Judith Meierhenry.

Key events

Key events in the professional histories of Severson and Meierhenry tie directly to the matter.

In the decision, Gilbertson made clear a governor can appoint a justice to the Supreme Court from any place. The governor can do so without regard to whether the person was a resident of the district where the Supreme Court vacancy occurred.

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The only residency requirement left standing by the Gilbertson decision is that the appointed person, before taking the oath to be a justice, must become a legal resident of the Supreme Court district for the seat to which she or he is appointed.

That Gilbertson, Severson and Meierhenry arrived at this position is no surprise.

Gilbertson wrote a generally similar opinion in 1993 regarding residency requirements for circuit judges. That case, Cummings v. Mickelson, dealt with two appointments made to circuit court judgeships. One was Severson.

When he applied, Severson wasn’t a resident of the circuit to which he eventually was appointed. The 1993 decision said that was OK. One concurrence in the case noted Severson was a voting resident of the circuit at the time of appointment.

It would be a big surprise had Severson, now 18 years later, decided there should be a stronger requirement for residency than was applied in his case.

As for Meierhenry, her retirement, announced June 8, gave the Supreme Court the legal basis to consider Daugaard’s request for an advisory opinion. She remains on the court until her successor takes office.

That enabled her to cast the tie-breaking vote that gives great leeway to the governor in choosing her successor.

1993 case

The 1993 case saw Gilbertson, a circuit judge, sitting on the high court as a temporary replacement. For that case, he replaced Justice George Wuest, who was disqualified.

Wuest was a circuit judge in Mitchell, in what then was the Supreme Court’s Fourth District, when he was appointed to the Supreme Court. He served on the high court for the Fifth District that stretched across the northern tier of South Dakota.

It would have required a body double to be a resident of both Supreme Court districts. Instead, an apartment address in the Fifth District was determined to suffice.

So the Supreme Court already faced internal challenges of residency when the 1993 case arrived, involving two decisions by Gov. George S. Mickelson to appoint replacements for retiring circuit judges.

In one instance, Mickelson appointed Glen Severson of Huron, who lived in the Third Circuit, to a judgeship in the Second Circuit that included Minnehaha County.

In the other instance, Mickelson appointed Mark Marshall of Rapid City, who lived in the Seventh Circuit, to a judgeship in the First Circuit.

After Marshall declined to accept, Mickelson next chose Kathleen Caldwell of Sioux Falls for the First Circuit vacancy. She lived in the Second Circuit.

Doug Cummings, a Sioux Falls lawyer interested in the Second Circuit appointment, asked the Supreme Court to prohibit Mickelson from making the two appointments. Cummings’ argument focused on residency.

The Supreme Court, in its decision, split several ways. Gilbertson was supported by Chief Justice Robert Miller and Circuit Judge Rodney Steele, while Justice Richard Sabers and Justice Frank Henderson strongly dissented.

Amendment's role

Gilbertson’s majority opinion pivoted upon the 1972 amendment to state constitution’s judicial article that was placed on the ballot by the Legislature and approved by the voters of South Dakota.

“We take judicial notice that similar appointments have been made in the past. There is no reason to believe they will not occur again. The Governor, by vigorously denying he has acted improperly, is clearly reserving his right to proceed in the same manner in the future,” Gilbertson wrote.